Cablevision Is Still Good Law WNET v. Aereo Inc., 2d Cir., No. 12-2786, 7/16/13).

By Jade Edwards

Yesterday the gloves came off in the 2nd Circuit when the court denied en banc review to a group of television networks that claimed Aereo Inc.’s streaming television service constitutes infringement. 

On March 4, leading television stations filed a suit against Aereo in the U.S. District Court for the Southern District of New York.  The suit claimed that Aereo’s television streaming services (which did not officially launch until a month after the suit was filed) infringed upon the copyrights of the television shows that  Aereo streamed to subscribers. 

Aereo argued that its services were legal because it only streams shows that are freely accessible to the public with use of an antenna.  Further the service simply provides subscribers with an antenna to access the media.  Aereo relied on the very infamous Cablevision case. Cartoon Network LP v. CSC Holdings Inc., 536 F.3d 121, 87 U.S.P.Q.2d 1641 (2d Cir. 2008). The Southern District held that Aereo’s technology was similar to that in the Cablevision and did not constitute infringement. 

In Cablevision, the Second Circuit reversed a decision of the district court and held a planned DVR service did not infringe upon copyright of television shows because the copy created by the DVR program was transient and not fixed.  The copy stayed within the server for seconds and was instantly transferred to the consumer’s DVR at which time the viewer controlled the use.  Therefore, the Court argued that if anyone would be guilty of infringement, it would be the viewer who retained a fixed copy of the copyrighted work for continuous use.  Have no fear, no television company (as of yet) has been willing to destroy its brand and sue it subscribers.      Lastly the Second Circuit held the transmission of data to one’s home installed DVR did not constitute public performance because each was designed to only transmit information to one subscriber or one home box, not to a public group. 

The major television networks in Aereo moved for en banc review, hoping that a full panel would overturn the Cablevision decision.  However, the Second Circuit, in a majority decision, refused to review.  Two dissenting Judges, Judge Chin and Judge Wesley remarked that the refusal to review and the use of Cablevision to find Aereo’s service non-infringing “eviscerates the Copyright Act.”

Whether you disagree or agree with the ruling Cablevision, the Second Circuit proved yesterday that it has no desire to overrule Cablevision.    

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